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find that the selectmen erred in judgment in approving of
such change.

1. Tlie court erred in refusing to charge that this claimi
was correct and applicable to the second as well as to the-
first count in the declaration. The jury ought to have been
instructed that they could not reasonably infer that the defend-
ants were liable because the selectmen erred in judgment.
The duty of the selectmen in accepting the road was of a
judicial nature, and they and the town are exempt from all
responsibility by action for the manner in which such duty
was performed. Jones v. Citi/ of New JIaven, 34 Conn., 14.

2. It was conceded that the precise place where the acci-
dent happened was on a part of the discontinued highway
from twenty to forty rods from the point of divergence from-
the existing highway. On tliis state of facts the defendants,
asked the instructions of the court. The court charged that
it was not necessary in all cases that the place where the in-
jury was received should be a part of the highway, but that
the injury must have happened because the highway was out
of repair and defective by the fault and negligence of the
defendants, and that the plaintiff's injury must have beeit
caused thereby. This charge was not sufiiciently specific
The first part of it was calculated to mislead the jury, unless
limited by other proper instructions which were not given.
Towns are not liable absolutely for all defects in their high-
ways. But the charge of the court impliedly holds that towns
are liable for all defects existing within and without the
limits of the highway ; which is not law. CJiidsey v. Totm
of Canton^ 17 Conn., 475 ; Ekaison v. Citi/ qf New Haven^
84 id., 142 ; Morris v. Plati, 32 id., 82.

3. The court erred in refusing to clmrge as asked for in
the last request of the defendants. The statute creates and
measures the liability of towns in regard to highways. Towns

Vol. XXXVII. — 39



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806 NEW HAVEN AND MIDDLESEX.

Munson t». Town of Derby.

are not bound to fence the sides of their highways except in
cases where the statute has laid this duty upon them, and the
present case is not within the statute. Ckid%ey v. Town of
Canton^ 17 Conn., 476; ffcwison v. City of New Saven^ 34
id., 142 ; BlodgeU v. City of Boston, 8 Allen, 287 ; Richards
V. Inhabitants of Enfield, 13 Gray, 844.

4. The court erred in the charge it finally made as set
forth in the record. The court here states the law incorrectly,
and tlie jury were misled thereby. Towns are not bound to
erect or maintain fences to prevent travelers from straying
from the highway, for the reason that the legislature has not
seen fit to impose this duty upon them. Jones v. City of New
Haven, 34 Conn., 10 ; Sparhawk v. City of Salem, 1 Allen,
go ; Rice v. Ibtcn of Montpelier, 19 Verm., 470 ; Tisdale v..
Inhabitants of Norton, 8 Met., 888 ; Eounsell v. Smith, 7 Com.
Bench, 729 ; Hevnson v. City of New Haven, 84 Conn., 140 ;
Smith V. Inhabitants of Wendell, 7 Cush., 500; Howard v.
Inhabitants of North Bridyetvater, 16 Pick., 189. The charge
is objectionable in form as well as substance. Hoyt v. SturgeSj
28 Conn., 538.

H. Stoddard, contra, cited Bimoek v. Town of Svffield, 30
Conn., 129 ; Heunson v. City of New Haven, 84 Conn., 136 ;
Davis V. Town of Hill, 41 N. Hamp., 829 ; Morse v. Town of
Richmond, 41 Verm., 441 ; Glidden v. Thwn of Reading, 38
id., 62 ; Ireland y. Oswego ^c. Plank Road Co., 13 N. York,
526 ; Palmer v. Inhabitants of Andover, 2 Cush., 600 ; Cogg%-
well V. Inhabitants of Lexington, 4 id., 807 ; Jones v. Inhabit-
ants cf Waltham, id. , 299 ; Collins v. Inhabitants of Dorchester^
6 id., 396; Hoyden y. Inhabitants of Attleborough, 7 Gray,
838 ; Wtlley v. Town of Portsmouth, 35 N. Hamp., 303 ;
Chamberlin v. Town of Enfield, 43 id., 356.

^Carpenter, J. Tlie plaintiff claimed that he sustained an
injury in consequence of a defective highway in the town of
Derby.

Tlie circumstances were these. The Housatonic Water
Power Company, by virtue of authority conferred upon it by



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SEPTBMBEE TERM, 1870. 807

Mansoa r. Town of Derby.

its charter, changed a portion of a highway in the town about
one-half mile in length, by making a new track or pathway
near to, and nearly parallel with, the old track. This change
was approved by the selectmen of the town. The Water
Power Company opened a ditch about twenty feet deep com-
pletely across the bed or traveled part of the old highway.
The old highway was more nearly in Hie line or direction in
which the plaintiff was traveling than the new. At the
point of divergence the road bed was in such a condition that
a stranger, or one not well acquainted with the locality,
would be quite as hkely in the night season to take the old
highway as the new. There was no railing or other indica-
tion that the old road was unsafe. The plaintiff passed over
the road in company with another man on the morning before
the accident happened, and that was the only evidence that
he knew of the situation of the road. In returning, the same
evening, the horse followed the line of the old highway, and
th^ plaintiff was precipitated into the ditch, whereby he was
injured. The plaintiff obtained a verdict in the Court of Com-
mon Pleas, and the defendants move for a new trial, on the
ground of alleged errors in charging the jury, and in refusing
to charge as requested.

There are two counts in the declaration. The first alleges,
in general terms and in the usual form, that the injury was
received while traveling upon and along the public highway.
The second alleges substantially the facts above stated. The
verdict was for the plaintiff on the second count, and for the
defendants on the first count.

No question is made in this comt as to contributory negli-
gence in the plaintiff; but the question is, in general terms,
are the defendants liable under the circumstances above
stated ? The court, in response to a request made by the
defendants' counsel, charged the jury that the action was not
fomided on the 8th section of the statute, requiring the town
to erect railings on the sides of bridges, and parts of the
highway so made or raised above the adjoining ground as to
endanger the safety of travelers ; but was founded on the 6th
section of the act, which provides tliat if any person shall



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308 NEW HAVEN AND MIDDLESEX.

Mnnson v. Town of Derbj.

lose a limb, break a bone, or receive any bruise or bodily in-
jury by reason of any defective bridge or road, the town
whose duty it is to keep the road or bridge in repair, shall
pay to the person so injured just damages. Was the then
existing highway defective within the meaning of this sta^
ute?

It is not contended that there was any structural defect, w
want of proper repair, in the highway itself. There was
therefore no danger to the plaintiflf arising from the negli-
gence of the defendants, so long as he kept within the limits
of the highway ; but the danger consisted in his being drawn,
unwittingly, from the highway, and induced to travel in and
along the route of tlie old, discontinued and dangerous high-
way. The case is a novel one in some of its aspects, and
presents a question differing somewhat from any that has
hitherto arisen in this state.

1 . The defendants asked the court to charge the jury " that
if the acts of the water company in changing the road bed,
were done according to the powers conferred upon them by
their charter, and such changes in the road bed were in good
faith and without fraud approved by the selectmen of the
town, the defendants could not be liable in this action for an
accident happening on a portion of the discontinued road,
even though the jury should find that the selectmen erred in
judgment in approving of such change." The court charged
the jury that the above claim was correct as applicable to
the first count of the declaration, but did not otherwise so
charge. We think this request wa« clearly inappliccJ^le to
the second count. That count does not base the liability
of the defendants upon any error in judgment, or upon any
negligence in respect to the condition of the bed of the old
road at the precise spot where the accident happened ; but
the negligence consisted in leaving the new road without a
sufficient guard to prevent travelers from going astray upon
the old.

2. Tlie defendants further requested the com^ to charge
" that the plaintiff must prove to the satisfaction of the jury
that the precise place where the injury was received was a



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SEPTEMBER TERM, 1870. 809

Munson p. Towa of Derby.

public highway of the town of Derl)y," which the court
omitted to charge ; " and that the highway where the accident
happened was defective and out of repair, by the fault and
negligence of the defendants, and that the plaintiff's injury
was caused by that defect." The court charged the jury that
it was not necessary in all cases that the place where the
injury was received should be a part of a highway, but that
the injury must have happened because the highway was out
of repair and defective by the fault and negligence of the
defendants, and that the plaintiflF's injury must have been
caused by that defect.

The objection to this part of the charge is, that it is not
sufficiently specific, and was calculated to mislead the jury,
unless limited by other proper instructions. There would be
force in this objection if the charge in this respect stood alone.
But considering this part of the charge in its application to
the case in hand, and in connection with the charge of the
coiul; in response to the defendants' fourth request, as stated
hereafter, in which the court carefully and properly applied
the substance of the charge now under consideration to the
circumstances of this case, we are of the opinion that the
jury could not have been misled by it, and that the defendants
have thereby sustained no injury.

8. The defendants further requested the court to charge,
" that towns are not obliged to fence their roads against ad-
joining land, or maintain any fence or railing on the sides of
their highway, for the purpose of preventing injuries outside
the limits of the highway, unless the sides of such parts of
such highways are so made or raised above the adjoining
ground as to endanger the safety of travelers ; and that if the
road bed of the new highway at the point of separation fr<Jm
the old or former highway in question, was not raised above
the road bed of the old highway, the defendants were not bound
by law to erect or maintain a railing or fence, and were not
under any circumstances liable for injuries happening outside
of the limits of the highway. The court charged the jury
" that towns are not ordinarily bound to fence or rail their
highways, and are not generally liable for injuries received



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810 NEW RA.YES AND MIDDLESEX.

Munson t^. Town of Derby.

outside the limits of the highway, but that under same circum-
stances towns miffht be liable for injuries received outside the
limits of the highway, and that if the jury should find as
claimed by the plaintiff, that the new and the old road ran in
the same general direction, and that the defendants had left
the new highway at the point of separation from the old
without any guard or railing, and in such a condition as
would be well calculated to mislead persons of ordinary pru-
dence, and draw them from the new road into the old and
unsafe road under the belief that they were still on the pub-
lic highway, then there was nothing in the law to prevent a
recovery, and that if the jury should so find, their verdict
should be for the plaintiff on the second count ; if they should
not so find, then their verdict should be for the defendants on
both counts."

The first part of this request, as a general proposition, is
well enough. The latter part, which would seem to establish
it as a rule precluding the possibility of any exception to it,
is wrong. Again : the words " railing" and " fence," as used
in the 8th section of our statute, seem to imply a barrier of
sufiicient strength to prevent travelers, under ordinary cir-
cumstances, from going off a bridge or embankment. If
the defendants' counsel used the words in that sense, we see
no objection to the request, provided it had any application
to the case ; for we do not suppose it was necessary for the
defendants to erect any such barrier at this place. A written
or printed notice that the road was discontinued, brought
home to the knowledge of a party who knowingly attempted
to pass over the road, would have been sufficient. But if
they meant by it, as we suppose they did, that the defendants
were under no obligations, by means of a fence, railing, or
otherwise, to inform the public that the old highway was dis-
continued and unsafe, then we think they were clearly wrong.

And that brings us to consider this question, — was the
want of such notice a defect in the new highway ?

The object and purpose of the statute was to compel towns
to keep their highways reasonably safe for travelers. Tlie
dangerous character of this highway, taken as a whole, can



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SEPTEMBER TERM, 1870. 811

Mnnson v. Town of Derbj.

admit of no question. Strangers, and others acquainted with
the road as it was, but unaware of the change, passing over
it in a dark night, would be almost certain to be drawn from
the road, and to meet with an accident at the risk of life
itself. The road was therefore unsafe. Was there any ex-
cuse for it ? The expense of some device whereby the public
could have been effectually warned of the danger, would have
been very slight. Can it be presumed that so great a danger,
resulting probably in such serious consequences, and so easily
guai'dcd against, was not embraced in the mischief which
the legislature intended to prevent ? The fact, upon which
the defendants so much rely, that the place where the acci-
dent happened was from twenty to forty rods from the point
of divergence of the two roads, and from two to five rods
distant from the nearest point in the new highway, seems to
us to be entitled to little or no weight. The danger did not
materially depend upon the proximity of the ditch to the new
highway, nor was it to any appreciable extent diminished by
its distance from it. If, at certain times, the traveler gets
upon the wrong road, the accident will be sure to happen
unless prevented by some unexpected event.

The road as it was therefore was a trap, and it was mani-
festly the duty of the town to use all reasonable precautions
to prevent strangers, and the unwary, from being caught in
it. It must be borne in mind that the question does not
relate to the duty of towns to fence highways generally, or to
use other precautions to prevent travelers from going astray.
The jury were properly told that no such duty rested upon
them. Ordinarily there can be no danger to the traveling
public from the want of such a fence. But when the public,
for a long time, have been accustomed to pass over a given
piece of highway, and the same becomes impassable or dan-
gerous from any cause, so that it is necessary to divert public
travel therefrom, good sense, as well as common prudence and
the dictates of humanity, requires that some means should
be adopted whereby the public shall be effectually warned of
the danger. That not having been done, the discontinuance
was on paper merely. There was no real, actual discontin-



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812 NEW HAVEN AND MIDDLESEX.



Munson v. Town of Derby.



uance. The old road was not closed, but was apparently an
open, public highway still. A road cannot be discontinued
by a mere vote. Something more is requisite. The public
must be actually excluded therefrom. Until that is done the
liability of the town, as to all persons without notice, remains
the same. So in this case. Merely opening a new track
and declaring the old track discontinued, was clearly insuffi-
cient. It was negligence in tlie selectmen to approve tlie
change and leave the two roads in that condition. A fence,
or its equivalent, to keep the public from the old track, was
essential. It was their duty to see not only that the new
road was in proper condition, but that the two combined did
not endanger the lives and property of those using the new.
Failing in this was not merely an error in judgment, it was
negligence ; and the town is liable for tlie consequences of
that negligence.

The principle underlying this decision is not now estab-
lished for the first time in tliis state. Towns are required to
keep the limits of the highway outside of the traveled path
treasonably free from objects which are calculated to frighten
horses of ordinary gentleness. Dimock v. Town of Suffield,
80 Conn., 129 ; Eewismy. City of New Haven, 34 Conn., 136,
If objects like these constitute defects in the highway, surely
a higliway so situated that travelers will be likely to be
allured from it into dangerous patlis, must be defective. The
danger in the one case is as real as in the other. The case
of Thorp V. Town of Brookfiddy 36 Conn., 820, was in some
respects like the present. A portion of a bridge had been
carried away by a freshet, so that it was impassable. It was
condemned, and the selectmen by means of a fence across
the highway on both sides, attempted to turn the travel from
it. The court held that they were guilty of negligence in
not continuing the barrier, so as effectually to warn tlie pub-
lic of danger. See also Oily of Norwich v. Breeds 30 Conn.,
636, where the same principle is distinctly recognized.

A brief reference to some of the auUiorities in other states
will show what the law is elsewhere. In Ireland v. The (?«-
wegoy Hannibal ^ Sterling Plank Road Companyy 13 N.



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SEPTEMBER TERM, 1870. 813

Munson v. Town of Derby.

York, 526, the facts were these. The defendants were au-
thorized to use an existing highway for the construction of
their road. In grading for the plank road the defendants,
within the bounds of the former highway, excavated the
earth so as to make a new track lower than the* former trav-
eled* path. Tlie new track diverged from the traveled path-
way of the former highway. The two tracks were on a level
at the place where they separated, and each was of suflScient
width at that place to admit of traveling with a carriage ;
but the old pathway gradually became higher than the new
track, and grew narrower until it came to a point at a place
where it was elevated from two to three feet above the new
track. The evidence tended to show that the plaintiff,
driving along in the evening, kept the old path, and was
thrown from his wagon and seriously injured. The Court of
Appeals held that the defendants were liable. Denio, C. J.,
says : — ^" Where a road is so constructed or altered as to pre-
sent at one point two paths, both of which exhibit the appear-
ance of having been used by travelers, and one of them leads
to a dangerous precipice, while the other is quite safe, it is
the duty of those having charge of the road to indicate, in a
manner not to be mistaken by day or by night, that the unsafe
patli is to be avoided ; and, if it cannot be otherwise done, to
put up such an obstruction as will turn the traveler from the
wrong track."

In Coggstoell v. hihahitcmtB of Lexington^ 4 Gushing, 807, it
appeared that a post stood within the limits of the general
course and direction of the travel, and made traveling dan-
gerous ; but whether within or without the limits of the high-
way did not appear. The court held that the town was liable
in either case, and that if the post was out of the limits of
the highway, so that they could not lawfully remove it, it was
their duty to place such a fence, or other barrier, between
it and the road, as would have rendered tlie road safe. The
same principle was recognized in Oof line v. Inhabitants of Dor-
c/iestevj 6 Gush., 896, and in Hoyden v. Inhabitants ofAttie-
boroughj 7 Gray, 888.

The case of Davis v. Sillj 41 N. Ilamp., 829, is an author-

VoL. XXXVII. — 40



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314 NEW HAVEN AND MIDDLESEX.

Manson v. Town of Derby.

ity directly establishing the proposition that " the want of a
suflBcient railing, barrier and protection to prevent travelers
passing upon a highway from running into some dangerous
excavation or pond, or against a wall, stones or other dan-
gerous obstioiction without its limits, but in the general direc-
tion of the travel thereon, may properly be alleged as a
defect in the highway itself." The same doctrine is supported
by Willep v. Portmouth, 86 N. Hamp., 803.

It is true the case now before us is not, in all respects,
identical with these cases. The difference, however, consists
mainly in the distance of the excavation from the new high-
way. We have endeavored to show that the matter of dis-
tance was immaterial. If we are correct in this then the
principle involved in all the cases is the same.

For these reasons a majority of the court are satisfied that
there should be no new trial.

In this opinion Butleb, C. J., Foster and Seyhoub, Js.,
concurred.

Park, J., was of opinion that, as the plaintiff's injury was
owing wholly to his going astray from the public highway
upon a road that had been legally discontinued in accordance
with the provisions of the charter of the Housatonic Water
Company, and was not connected in any manner with public
travel upon a public highway, he could not recover. He
regarded the cases hitherto decided, where towns have been
held liable, as all cases of injury to persons traveling on the
highway itself. And as confessedly towns are not liable any
further than some statute imposes a liability, he considered
it necessary to a liability on the part of the defendants that
there should be some statute requiring towns to erect fences
or other barriers, or give public warning in some manner, to
prevent travelers on public roads from going off the road to
their injury; the statute requiring a railing to be erected
by towns wliere the sides of tlie road are raised above the
adjoining land having no application to a case like this, where
the place of danger was remote from the highway itself.



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i



SEPTEMBER TERM, 1870. 815



WooBter V, Glover.



James B. Woosteb v9. Isauh Gloyeb.

Qoestioiis relating to the anfficiencj of the declaratioD, to the proper parties to a
suit, and to the sendee of the writ, are not ordinarily proper matters to be
considered on a petition for a new trial.

Where the petition contained no averment in respect to such matter?, and it did
not appear that they in any way conduced to the judgment against the peti-
tioner, the court refused to revise the action of the court below upon them.

A new trial will not be granted where it appears that substantial justice has been
done, and that the result of a new trial would not probably be different

Evidence by the respondent that substantial justice has been done is admissible
in a petition for a new trial.

A new trial will not be granted on the ground of excessive damages, unless it
appears that they are so excessive as to do substantial injustice.

An amendment of the record after a cause has gone into judgment, upon the ap-
plication of one of the parties, ought not to be made without notice to the
other party. But where an amendment was so made, and it appeared that it
corresponded to the facts, and that justice required it, the court refused, upon
a petition for that purpose, to restore the record to its original condition.

Petition for a new trial, brought to the City Court of the
city of New Haven. Tlie petition was dismissed by the court,
and the petitioner filed a motion in error and also moved for
a new trial. The principles of law decided«by the court will
be suflSciently understood without a statement of the facts of
the case.

Cothrenj in support of the motion.

HofferSy contra.

Carpenter, J. The petitioner was defendant in an action
at law brought against him by the respondent, before the
City Court for the city of New Haven. Judgment was ren-
dered against him by default. He then brought to that court
a petition for a new trial, and that being denied, he moves
for a new trial upon that petition, and files also a motion in
error. The case was submitted on briefs, and, as presented,
seems to confound all distinctions between petitions for a new
trial and proceedings based thereon, and motions for a new



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